Here's the dirt on "after-acquired" evidence since

McKennon.
The act by which a nation or individual treats another in the same manner that the latter has treated
them. Bract. Some have applied the ruling to limit the use of after-acquired evidence in common law
breach-of-employment contract claims. The term largely refers to the basic strategy of the nuclear
powers and the major alliance systems.
and compensation for injuries caused by the prohibited discrimination.
The Court said employers must be forced to examine their motivations and be penalized
penalize
tr.v. Supreme Court ruled in McKennon v. circumvented, circumventing,
circumvents
1. Gale Group is a Thomson Corporation Company.
. A prisoner who is remanded into custody is sent back to prison subsequent to a Preliminary
Hearing before a tribunal or magistrate from the Supreme Court in light of McKennon, the court
of appeals vacated part of its opinion that directed the award of back pay from discharge to
judgment. Courts have freely applied its "no complete bar" rule to Title VII actions,(17) Americans
with Disabilities Act Americans with Disabilities Act, U.S. At trial, the court dismissed her Age
Discrimination in Employment Act The Age Discrimination in Employment Act of 1967, Pub. It
merged with Boeing in 1997 to form The Boeing Company. Rather, the defendant was required to
show the plaintiff would have been fired on discovery of the wrongdoing--in this instance, on the eve
On the Eve (???????? in Russian) is the third novel by famous Russian writer Ivan Turgenev, best
known for his short stories and the novel Fathers and Sons. App. 1995).
(18.) At least 10 states have expressly adopted or cited with approval the McKennon approach to
after acquired evidence with respect to their antidiscrimination statutes. To rely on after-acquired
evidence, however, McKennon requires that the defendant-employer show wrongdoing
wrongdoer
n.
One who does wrong, especially morally or ethically.
wrong do "of such severity that the employee in fact would have been terminated on those grounds
alone if the employer had known of it at the time of the discharge."(9)
Even where the employer can make the "severity" showing, a plaintiff's remedies are not necessarily
subject to McKennon's "general rule" denying reinstatement and front pay and cutting off back pay
at the point the wrongdoing was discovered.
Under this case, courts can consider taking into further account "extraordinary equitable
circumstances that affect the legitimate interests of either party."(10) The decision left it to the
lower courts to determine what those "equitable circumstances" might be.(11)
Later decisions
A review of post-McKennon decisions suggests that the federal bench, for the most part, is taking a
more reasonable approach to after-acquired evidence. 1997); Mitchell v. 1996); Patterson v. Prac.
Department of Corrections, 548 N.W.2d 660,664 (Mich. Or was it?
This doctrine--at least in its most extreme form--allowed employers to circumvent
circumvent
tr.v. 1996).
(13.) Russell, 65 F.3d 1229, 1241; Shattuck, 49 F.3d 1106,1109.
(14.) Russell, 65 F.3d 1229. Time-Life Libraries, Inc., 95 F.3d 353 (4th Cir.), vacated on reh'g, 1996
U.S. (ADEA ADEA Age Discrimination in Employment Act of 1967
ADEA American Dental Education Association (Washington, DC)
ADEA Association for the Development of Education in Africa (RSA) ) claim because she violated
company policy by taking confidential company documents home. 1994).
(5.) 513 U.S. filed Mar. Ins. False advertising may also constitute misrepresentation. L. 2, t. & Cr.
1996).
(31.) McKennon notes that "remedial determinations must recognize that a violation of
discrimination law has occurred which must be deterred and compensated.... decisions have
recognized that the test is a stringent one.
These courts have held that the employer failed to make the requisite showing as a matter of
law.(12) Where there is contradictory evidence on the severity issue, a jury must decide the
question.(13)
In Russell v. 602 (Dec. 15, 1967), codified as Chapter 14 of Title 29 of the United States Code,
through (ADEA), prohibits employment discrimination against persons 40 years of age or older in the
United States (see ). App. It most commonly occurs in insurance and real-estate contracts. One who
dwells in a part of another's house, the latter dwelling, at the same time, in the said house. claims
breathed a sigh of relief two years ago when the U.S. granted, 511 U.S. See, e.g., Wright v. 1.
Columbia Mach., 80 F.3d 1406, 1412 (9th Cir.), cert. Therefore, we can have your wrongful
discharge claim dismissed now, based on this after-acquired evidence."(2)
The after-acquired evidence rule has been controversial throughout its history. at 361.
(12.) See Padilla v. In addition, courts appear to be taking a restrained approach in applying the
rule, as a matter of law, to limit relief.
However, where an employer has been permitted to rely on after-acquired evidence, application of
the "no front pay, no reinstatement, limited back pay" rule has been somewhat mechanical, and
courts have been reluctant to use equitable considerations to favor plaintiffs. Defense, TRIAL,
Mar. Originally damages for emotional distress were only awardable in conjunction with damages
for actual physical harm. 352 (1995).
(2.) See Sheldon J. For example, in a Third Circuit case on remand To send back.
A higher court may remand a case to a lower court so that the lower court will take a certain action
ordered by the higher court. Stark is a partner at Stark and Gordon in Royal Oak, Michigan Royal
Oak is a city in Oakland County of the U.S. For example, if a nation should lay a very heavy tariff on
American goods, the United States would be justified in return in laying heavy duties on the
manufactures and cannot go unremedied.(40)
As noted, no case law has yet emerged under McKennon's directive concerning "extraordinary
equitable circumstances" that would exempt certain cases from its general rule limiting available
relief. Healthcare Corp., 90 F.3d 927, 935 (5th Cir. 2d 98, 101 (Ala. Co., 878 E Supp. of trial.
Several circuits have rejected the "never-would-have-been-hired" standard in the resume- or job-
application-fraud context. The court held that McKennon did not govern because no employer-
employee relationship existed.(28)
Outside the discrimination context, courts are divided on the applicability of McKennon. 1996).
(41.) McKennon, 513 U.S. John Wiesner, Inc., 923 S.W.2d 262 (Text Ct. 1996), aff'd in part, rev'd in
part, 933 P.2d 743 (Kan. Metro-North Commuter R.R., 92 F.3d 117 (2d Cir. & Cr. McDonnell
Douglas McDonnell Douglas was a major American aerospace manufacturer and defense contractor,
producing a number of famous commercial and military aircraft. Manual 405:7331 (BNA BNA
Bureau of National Affairs, Inc.
BNA Birds of North America
BNA block numbering area (US Census)
BNA British North America
BNA Banco Nacional de Angola (National Bank of Angola) 1996).
(22.) See, e.g., Thurman, 90 F.3d 1160, 1167-68; Wehr, 49 F.3d 1150,1153.
(23.) Mardell v. . 90-202, 81 Stat. 295 (1996).
(21.) EEOC Guidance on After-Acquired Evidence, EEOC Notice No. 1995); Shattuck v. 17, 1996).
(20.) See, e.g., Schnidrig v. Supreme Court since 1988. See Synonyms at punish.
2. The agency aptly points out that "no legitimate business prerogatives are served by exonerating a
proven discriminator discriminator
n.
1. Trial courts may, therefore, be reluctant to stray from the "no front pay, no reinstatement, back-
pay-only-to-the-point-of-discovery" formula, even in cases where denial of these remedies would be
extremely harsh.
Hostile and well-financed opponents will continue to put plaintiffs "under the microscope," and
substantial time, research, and emotional energy will be spent responding to these efforts. conform
to - satisfy a condition or restriction; "Does this paper meet the requirements for the degree?"
fit, meet
coordinate - be co-ordinated; "These activities coordinate well" this view.(32) Although the
question has not been extensively analyzed in post-McKennon cases, several federal circuits have
properly indicated that after-acquired evidence should not affect emotional distress or punitive
damages.
The Fourth Circuit presumed that emotional distress and punitive damages were available if they
"arose out of conduct occurring prior to the discovery" of the employee's wrongdoing.(33) The
Eleventh Circuit observed that "the after-acquired evidence is irrelevant to [the defendant's] mental
state and thus does not bar these liquidated damages Monetary compensation for a loss, detriment,
or injury to a person or a person's rights or property, awarded by a court judgment or by a contract
stipulation regarding breach of contract. civil-rights law, enacted 1990, that forbids discrimination
of various sorts against persons with physical or mental handicaps. Otherwise, the plaintiff is not
placed in the same position he or she would have been in absent the discrimination, and the
defendant gets a "windfall windfall
An unexpected profit or gain. C. Courts recognizing this fact point out that the pertinent inquiry is
"whether the employee would have been fired upon discovery of the wrongdoing--not whether he
would have been hired in the first instance."(24)
In Shattuck v. The incentive of reducing damages and other equitable relief remains. Co., 62 F.3d
374,379 (11th Cir. 1306, 1310 (E.D. An investor holding a stock that increases greatly in price
because of an unexpected takeover offer receives a windfall. Ct. 227; 9 B. denied, 117 S. at 362.
(7.) McKennon, 9 F.3d 539 (6th Cir. 154; 2 Man. at 665.
(17.) See, e.g., Wehr v. Kitch. ."(4)
While the McKennon Court prohibited the use of after-acquired evidence as a complete bar to
employment discrimination claims, it held that this evidence was relevant to the issue of relief. As
stated or indicated by; on the authority of: according to historians.
2. The opinion further noted that the Court made no attempt to distinguish the two kinds of cases
and used the broad term "wrongdoing."(23)
Courts appear to be taking a realistic approach in terms of how they apply McKennon in pre-
employment misconduct cases. " because its unlawful acts led to the discovery itself.(37)
Under McKennon, however, "once an employer learns about employee wrongdoing that would lead
to legitimate discharge, we cannot require the employer to ignore the information, . 13,1997);
Russell v. But cf. Prac. 1996) (petition for cert. 1545, 1552 (M.D. from its personnel director
stating that the officer would have been dismissed if Corrections Department officials had known she
was sending love letters to the inmate. Yellow Freight Sys., 90 F.3d 1160, 1168 (6th Cir.), amended,
97 F.3d 833 (6th Cir. at 362-63.
(10.) Id. and failure-to-promote sex discrimination claim, was fired when the employer discovered
the "falsehoods" during the litigation. 8, c. At the same time, the holding gives courts--and plaintiffs-
-an equitable exception to limiting damages in cases where it would be unfair to apply the "no front
pay, no reinstatement" rule.(6)
In any event, the decision clearly benefits discrimination plaintiffs in jurisdictions where the doctrine
was most harshly applied. v. Others have distinguished discrimination claims from breach-o-
-contract actions and held that McKennon's limitation does not apply--and that the evidence can still
be used to defeat liability altogether.(29)
As for public policy tort cases, courts have correctly noted the relevance of McKennon's reasoning to
wrongful discharge claims involving an "overriding governmental interest."(30) The case makes the
broad public-policy-based argument that the unclean-hands defense should be barred "where a
private suit serves an important public purpose."
Nothing in the opinion suggests that antidiscrimination goals are the only important public purpose
to be served by removing the most extreme form of the after-acquired evidence doctrine from the
employer's litigation arsenal.
Impact on damages
An issue that McKennon addressed only indirectly is the impact of after-acquired evidence on
noneconomic, emotional distress emotional distress n. App. under the Equal Pay Act."(34)
The EEOC takes the position that "nothing in McKennon suggests that compensatory damages A
sum of money awarded in a civil action by a court to indemnify a person for the particular loss,
detriment, or injury suffered as a result of the unlawful conduct of another. & Ry. Woodbury County
Juvenile Detention Ctr., 905 E Supp. ).
(35.) 8 Fair Empl. The worker's underlying discrimination complaint is later found to be without
merit.(39)
Under McKennon's "no front pay, no reinstatement, back-pay-only-to-the-point-of-discovery" formula,
the employee would not be entitled to any damages for back pay because the termination coincided
with the discovery.
According to according to
prep.
1. 352 (1995).
(8.) 513 U.S. To give a name or title to.
2. of; to direct or assign for a use.
See also: Dispose
employment claims on motions for summary judgment, was finally put to rest. . Plaintiffs have
successfully maintained that post-employment misconduct should have no bearing on the availability
of certain kinds of relief.
In one case, the defendant argued that the plaintiff's marijuana marijuana or marihuana, drug
obtained from the flowering tops, stems, and leaves of the hemp plant, Cannabis sativa (see hemp)
or C. Margaret J. Ct. even if the information might have gone undiscovered absent the suit."(38)
Nevertheless, this decision would in fact permit application of equitable principles where its general
remedial rule would result in outrageous employer windfalls.
Scenario
EEOC enforcement policy describes a
"windfall" scenario: An employee alleges
discriminatory failure-to-promote charges
against the employer, which then launches a
retaliatory retaliate
v. To furnish with a right or claim to
something: to little or no back pay and no
front pay or reinstatement under McKennon's
general rule.
Thus, the plaintiff's only hope for recovery
might be noneconomic damages. 1995). U.S.
investigation. 1995). 352, 362-63.
(6.) Id. Fearing she was about to be fired because of age discrimination, she copied several
documents relating to relating to relate prep -> concernant
relating to relate prep -> bezglich +gen, mit Bezug auf +acc the company's financial
condition, believing they would be useful to her later. Vaughn, 669 So. It should not be confused
with Royal Oak Charter Township, a separate community located nearby. Manual 405:7334 (BNA
1996).
(40.) Id. The "good news" of McKennon was that discrimination victims' claims would no longer be
dismissed based on this kind of evidence. 1997).
(30.) See e.g., Gassmann, 933 P.2d 224,232 (Kan. All rights reserved. Supp. Manual 405:7336 (BNA
1996).
(33.) Russell, 65 F.3d 1229, 1241. 1995, at 26.
(3.) See KENT SPRIGGS, REPRESENTING PLAINTIFFS IN TITLE VII ACTIONS (1994).
(4.) Bazzi v. Ct. Co., 31 F.3d 1221, 1240 n.33 (3d Cir. 14, 1995); 8 Fair Empl. 45, b; Com. As of the
2000 census, the city had a total population of 60,062. The object of compensation is to restore the
employee to the position he or she would have been in absent the discrimination." 513 U.S. Supreme
Court. 578; 8 E. & S. Justices of the Peace, B 85; 1 B. , the Supreme Court reversed the Sixth
Circuit's ruling. CNA (Certified NetWare Administrator) See Novell certification. at 7334-35; see
Delli Santi v. Life Ins. In fact, the Court suggested that reinstatement Reinstatement
The restoration of an insurance policy after it has lapsed for nonpayment of premiums. Only with
that proof could the defendant use after-acquired evidence to restrict damages.(26)
Plaintiff attorneys have found themselves arguing against the application of McKennon's limitation
on damages in cases where the misconduct alleged took place after the employee was terminated. A
federal district court, in a pre-McKennon decision overturned by the Sixth Circuit, put it this way: "A
false statement on an employment application is not an insurance policy covering bigotry Bigotry
See also Anti-Semitism.
Beaumanoir, Sir Lucas de
prejudiced ascetic; Grand Master of Templars. Manual 405:7336 (BNA 1996).
(36.) Mardell, 65 F.3d 1072.
(37.) Wallace, 62 F.3d 374.
(38.) McKennon, 513 U.S. For other cases involving minor misrepresentations or omissions in the
employment application, see Thurman v. Moreover, some discrimination claimants' damages are
almost entirely noneconomic. 1994), vacated (on basis of McKennon as to damages), 65 F.3d 1072
(3d Cir. , Inc., 49 F.3d 1150, 1153 (6th Cir. 1995); Walters v. 1995).
(24.) Shattuck, 49 F.3d 1106, 1108-09.
(25.) Id.
(26.) Wallace v. To go around; bypass: circumvented the city.
the merits of a discrimination claim by arguing: "We could have legitimately fired you for this
reason if we had known about it at the time. L. In cases where wrongdoing is discovered shortly
after the employee's discharge, the employee may be entitled entitle
tr.v. The employer discovers that the worker falsified his employment application and fires him
under a strictly enforced termination policy. It is a suburb of Detroit. To subject to a penalty,
especially for infringement of a law or official regulation. [Br. Mich. Kinetic Concepts, Inc., 49 F.3d
1106, 1109 (5th Cir. Harleysville Life Ins. The Sixth Circuit upheld summary judgment for the
defendant.(7)
On January 23, 1995, in a unanimous decision A Unanimous Decision is a winning criterion in
several full-contact combat sports, such as boxing, kickboxing, Muay Thai, mixed martial arts and
others sports involving striking in which all 3 judges agree on which fighter won the match. Health
Sys., Inc. L. Stark, The After-Acquired Evidence Doctrine:An Insidious insidious /insidious/ (-
side-us) coming on stealthily; of gradual and subtle development.
insidious
adj.
Being a disease that progresses with few or no symptoms to indicate its gravity. Ct.
Attorneys handling employment discrimination and wrongful discharge An Equestrian Property For
Sale Oakland TN at-will employee's Cause of Action against his former employer, alleging that his
discharge was in violation of state or federal antidiscrimination statutes, public policy, an implied
contract, or an implied Covenant of Good Faith and fair dealing. LEXIS 33089 (4th Cir. The act or
process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. It was long a
voice of conservative viewpoints in contrast to its liberal morning counterpart, The Tennessean
Publishing Co.(1) The dreaded "after-acquired evidence" defense, an increasingly popular means
to dispose of To determine the fate of; to exercise the power of control over; to fix the condition,
application, employment, etc. and front pay would generally be inappropriate remedies in cases
where after-acquired evidence is presented.(5)
Accordingly, McKennon will not completely curb management's appetite for digging through an
employee's past to see what kind of "dirt" can be turned up. at 362.
(11.) Id. 352, 358 (citing Oscar Mayer Oscar Mayer is an American meat and cold cut production
company, now owned by Kraft Foods, known for its hot dogs, bologna, bacon and Lunchables
products.
German immigrant Oscar Ferdinand Mayer & Co. 1995); Mardell v. & Cr. Ryan's Family Steak
Houses steak house or steakhouse
n.
A restaurant that specializes in beefsteak dishes. 767 (1997).
(15.) Horn v. for decisions that spring from discrimination. In terms of deterrence, the Court noted
the importance of disclosure through litigation An action brought in court to enforce a particular
right. 1993), cert (Computer Emergency Response Team) A group of people in an organization who
coordinate their response to breaches of security or other computer emergencies such as
breakdowns and disasters. Gassmann v. 71; 15 E. Several post-McKennon federal appellate Relating
to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and
other proceedings. 153; 2 Dowl. recognize its applicability in these contexts.(21)
Since McKennon itself did not involve pre-employment misconduct, such as resume fraud or
misrepresentations on the employment application, these cases have presented special analytical
problems for post-McKennon courts.
Defendants have sought to distinguish McKennon by arguing that an employer should not be liable
for any back pay where an employee has obtained a job under "false pretenses False representations
of material past or present facts, known by the wrongdoer to be false, and made with the intent to
defraud a victim into passing title in property to the wrongdoer. 619 (N.D. Helicopter Co., 79 F.3d
756, 761 (9th Cir. 352, 358-59.
(9.) Id. Dig. Ct. an increasingly popular basis for a claim of damages in lawsuits for injury due to the
negligence or intentional acts of another. The defendant also said it had terminated 78 employees
for engaging in romantic relationships with inmates during a two-year span.
Upholding dismissal of the plaintiff's claims for reinstatement and front pay, the court found her
"unsubstantiated allegation The assertion, claim, declaration, or statement of a party to an action,
setting out what he or she expects to prove.
If the allegations in a plaintiff's complaint are insufficient to establish that the person's legal rights
have been violated, the defendant can make a that defendant did not uniformly enforce its Horse
Property Oakland TN work rules" was insufficient to raise a genuine factual issue regarding whether
or not the state would have dismissed her for the misconduct.(16) This case highlights the necessity
for discovery relating to a defendant's record of enforcement--a potentially burdensome task for the
plaintiff.
Another question left open by McKennon is the extent to which its reasoning applies in other
contexts--for example, in factually distinguishable discrimination cases, cases brought under state
discrimination statutes, wrongful discharge breach-of-contract cases, and public policy tort cases.
Most often, the defendant-employer would be the party arguing against extending McKennon to
these kinds of claims in the hope that the after-acquired evidence could still be used as a complete
defense, as it had been pre-McKennon.
Although McKennon was based on an ADEA claim, the decision was clearly aimed at Title VII claims
as well. Dec. W. violations, and cases brought under state antidiscrimination statutes.(18)
Within the discrimination context, the precedent has been applied in nondischarge cases, such as
failure-to-rehire(19) and failure-to-promote claims.(20) Equal Employment Opportunity Commission
(EEOC EEOC
abbr.
Equal Employment Opportunity Commission
EEOC n abbr (US) (= Equal Employment Opportunities Commission) -> comisin que investiga
discriminacin racial o sexual en el empleo ) enforcement guidelines guidelines,
n.pl a set of standards, criteria, or specifications to be used or followed in the performance of certain
tasks. For the Maryland senator, see Anthony Kennedy (Maryland).
Anthony McLeod Kennedy (born July 23, 1936) has been an Associate Justice of the U.S. Prac. Prac.
One that discriminates.
2. R. 1995) but cf. The court also held that the employee would only be entitled to back pay through
the date when the misconduct was discovered.(36)
This result is unfortunate and shows that applying McKennon's "no front pay, back-pay-to-the-p-
int-of-discovery" rule can result in denying the "make whole" relief the plaintiff is entitled to receive.
Before McKennon, plaintiffs in some jurisdictions could argue that the defendant never would have
discovered the wrongdoing but for the civil suit prompted by its discriminatory behavior.
For example, a pre-McKennon Eleventh Circuit opinion pointed out that back pay should not be
prematurely cut off unless the employer can prove it would have discovered the wrongdoing even if
the unlawful acts never occurred and the litigation never took place. Cos., 88 F.3d 192 (3d Cir. Dunn
Constr. R. written by Justice Anthony Kennedy This article is about the Associate Justice of the
U.S. In jurisdictions that never used this evidence as a complete bar to relief, a post-McKennon
plaintiff's recovery might actually be less than it would have been pre-McKennon.
Most analyses of post-McKennon cases deal with what kind and what amount of evidence is
necessary in order for a defendant to establish the severity threshold. Often, misrepresentations that
might have made a difference in predicting the likelihood of an employee's success make no
difference at all after the employee has proven himself or herself capable of doing the work.
Harleysville Life Ins. 667, 682-83 (S.D.N.Y 1995).
(29.) See, e.g., Southern Med. . Manual 405:7336 n.7 (BNA 1996).
(34.) Wallace, 62 F.3d 374,380 (en bane BANE. App. Electronics A device that converts a property of
an input signal, such as frequency or phase, into an amplitude variation, depending on how the
signal differs from a from paying the full cost of the emotional damage caused by the
discrimination."(35)
Predictably, some plaintiffs have fared worse with regard to damages under McKennon than they
would have before the decision. 750, 756 (1979)).
Sheldon J. the guidelines, however, this "extraordinary equitable circumstance" would warrant an
award of back pay up to the point that the complaint is resolved because the retaliation
RETALIATION. use after her termination would have been grounds for her discharge if she had
remained employed. penalized, penalizing, penalizes
1. 352, 362.
(39.) 8 Fair Empl. Co., 537 N.W.2d 708 (Iowa 1995).
(19.) See, e.g., Egbuna v. Concepts, Inc., the Fifth Circuit prohibited the employer from relying on
evidence that the age discrimination plaintiff lied on his resume about being a college graduate.(25)
The plaintiff was 52 years old when he was hired and had an excellent record during his six years of
employment, which earned him a company award and salary increases.
The court held, based on McKennon, that it was not enough for the defendant to show it would not
have hired the plaintiff had it known about the misrepresentation misrepresentation
In law, any false or misleading expression of fact, usually with the intent to deceive or defraud. Ala.
Prescott v. of violations and "patterns of noncompliance noncompliance
failure of the owner to follow instructions, particularly in administering medication as prescribed; a
cause of a less than expected response to treatment.
noncompliance ."(8)
The "bad news" of McKennon, of course, was the limits the decision placed--and continues to place-
-on a reasonable remedy. denied, 117 S. The court disagreed.(27) In another case, an associate in a
law firm copied other associates' evaluations after she was terminated. 352, 362.
(32.) 8 Fair Empl. If and when courts do begin to deviate from the remedial formula, one hopes they
will remember the Supreme Court's admonition Any formal verbal statement made during a trial by
a judge to advise and caution the jury on their duty as jurors, on the admissibility or nonadmissibility
of evidence, or on the purpose for which any evidence admitted may be considered by them.
Evangelical Lutheran Good Samaritan Good Samaritan
man who helped half-dead victim of thieves after a priest and a Levite had "passed by." [N.T.: Luke
10:33]
See : Helpfulness
Good Samaritan Soc'y, Inc., 933 P.2d 743 (Kan. Iowa 1995).
(28.) Sigmon v. App. 1992), rev'd, 25 F.3d 1047 (6th Cir. C. Sande is an associate with the firm.
COPYRIGHT 1997 American Association for Justice
No portion of this article can be reproduced without the express written permission from the
copyright holder.
Copyright 1997, Gale Group. P.H.P. Co., 65 F.3d 1072, 1074 n.4 (3d Cir. 743; 8 B. Kinetic
kinetic /kinetic/ (ki-netik) pertaining to or producing motion.
kinetic
adj.
Of, relating to, or produced by motion.
kinetic
pertaining to or producing motion. It is the most common sulfate mineral, occurring in many places
in a variety of forms. Evans, 441 U.S. The EEOC's guidelines reject Russell's approach to the extent
that the date of discovery of misconduct plays any role in limiting these damages; 8 Fair Empl. Many
commentators and courts have pointed out the doctrine's flaws,(3) and even before McKennon not
all circuits applied it as a complete defense from liability.
The analysis of the doctrine comes down to a fairly simple notion: The defendant is getting away
with illegal conduct. This word was formerly used to signify a malefactor. ." Despite these
arguments, courts have assumed that the McKennon ruling applies equally to resume fraud, which is
perhaps the most common after-acquired evidence situation.(22)
A Third Circuit opinion noted that the McKennon Court cited both on-the-job misconduct cases and
resume fraud cases when it reviewed the split in the circuits. No. & Ry. The plaintiff had filed an
action alleging constructive discharge and sexual harassment involving another employee.(15)
In support of its summary judgment motion arguing the action was barred by the after-acquired
evidence rule, the defendant presented an affidavit affidavit
Written statement made voluntarily, confirmed by the oath or affirmation of the party making it, and
signed before an officer empowered to administer such oaths. Thus, the decision has probably had
little impact in terms of how most cases, which settle out of court, are conducted.
Remedial determinations
In McKennon, the Supreme Court encouraged lower courts to develop a body of case law concerning
factors that should be taken into account when making remedial determinations in light of after-
acquired evidence.
In particular, the High Court expected the courts to identify "extraordinary equitable circumstances"
affecting either party that would warrant an exception to the "no reinstatement, no front pay, back-
pay-to-the-point-of-discovery" rule.
But equitable principles have been slow in coming. Gypsum gypsum (j?p`s?m), mineral composed
of calcium sulfate (calcium, sulfur, and oxygen) with two molecules of water, CaSO42H2O.
retaliated, retaliating, retaliates
v.intr.
To return like for like, especially evil for evil.
v.tr.
To pay back (an injury) in kind. 1995).
(27.) Carr v. Microdyne Corp., for example, the "misconduct" alleged was "minor discrepancies" on
the plaintiff's employment application--the most serious of which was her having written "$25/hr.-
-$50k" as her current salary.(14) In fact, she was earning $25 an hour at one of three part-time jobs,
and her earnings did not total $50,000 a year.
The plaintiff, who had filed a sexual harassment sexual harassment, in law, verbal or physical
behavior of a sexual nature, aimed at a particular person or group of people, especially in the
workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-
opportunity statutes. Nashville Banner The Nashville Banner was a daily newspaper of Nashville,
Tennessee which ceased publication in 1998. Co., 808 F. state of Michigan. Not only did the court
find a genuine dispute as to whether this conduct amounted to "serious wrongdoing," but there also
was a question of fact as to when the defendant found out about the conduct--that is, whether it was
in fact "newly discovered."
In contrast to Russell, the Michigan Court of Appeals found no genuine factual issue as to whether
the state's Department of Corrections would have dismissed a plaintiff--a corrections officer--for
having a romantic relationship with an inmate INMATE. Lit.: Ivanhoe]
Bunker, Archie
middle-aged bigot in television series. 1106 (1994), and rev'd, 513 U.S. 915.002 (Dec. Restaurant
Concept, 532 N.W.2d 889 (Mich. 1996).
(16.) Id. , or punitive damages Monetary compensation awarded to an injured party that goes beyond
that which is necessary to compensate the individual for losses and that is intended to punish the
wrongdoer. v. . The Supreme Court focused on two aims of federal antidiscrimination law that would
be undermined if after-acquired evidence barred relief in every instance: deterrence deterrence
Military strategy whereby one power uses the threat of reprisal to preclude an attack from an
adversary. entitled, entitling, entitles
1. Now that more than two years have passed since the decision, it seems appropriate to consider
subsequent case law to see how plaintiffs have fared and to determine what is left of the after-
acquired evidence defense.
Genesis
Christine McKennon was a secretary to Nashville Banner Publishing Co.'s comptroller and had
access to confidential documents. Should after-acquired evidence have any impact on these
damages?
The McKennon decision implies that "after-acquired evidence should have no bearing on this kind of
relief."(31) EEOC guidelines issued after the decision conform to Verb 1. for emotional harm
should be time limited" by after-acquired evidence. Prac. . . 1. Instead, they have required that the
employer prove it would have fired the plaintiff when it knew of the wrongdoing. To surround (an
enemy, for example); enclose or entrap.
2. . In keeping with: according to instructions.
3. Independent Life & Accident Ins. 1996), cert. Microdyne Corp., 65 F.3d 1229, 1241 (4th Cir.
that the objectives of deterrence and compensation for injuries must be met in order to realize the
ultimate goal of this type of workplace litigation--"elimination of discrimination in the
workplace."(41)
Notes
(1.) 513 U.S. indica; the latter species can withstand colder climates. But see O'Day v. Parker Chapin
Flattau & Klimpl, 901 E Supp